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July 2, 2014

This past Monday, the Supreme Court’s gang of five conservative justices lobbed a small grenade into the trenches of the labor movement—and then headed off for summer vacation. The grenade, which took the form of Justice Samuel Alito’s majority decision in Harris v. Quinn, was not the death-bomb many feared, but it will arguably go down as one of the most anti-labor rulings flung from the bench in recent years.

At the heart of Harris v. Quinn was the life-and-death question of whether public unions would be able to sustain their collective bargaining operations and, in essence, themselves. More specifically, the case torqued around the issue of whether publicly funded home health-care workers who enjoy the benefits of collective bargaining but are not themselves union members can be required to pay union fees (“fair-share fees” or “agency fees”). The ruling had been anxiously anticipated among labor supporters, who feared the Court would take the opportunity to wax expansive and simply declare—poof!—that public unions cannot request such fees. If that happened, public unions would effectively be transformed into “right-to-work” shops—husk-like operations hollowed out by years of non-union members enjoying free rides off the unions they claim to disdain.

In the end, the Court took a more targeted approach. Rather than exempting all public employees from paying agency fees, Alito created—and exempted—a new category of worker, the “partial public employee.” Because these workers are paid by the government but hired, fired and managed by individual clients, Alito declared, they are neither fully of the public sphere, nor fully of the private, but hover in some liminal, unprotected half-space.

The Court’s modified ruling was initially greeted with relief, but as the full text of Alito’s words has begun to sink in, serious questions have begun to swirl around just how narrow the decision really is. What, for instance, is this strange new creature, the “partial public employee”? Is it a fixed and static category, or some shifty amoeba-like thing that can change form and even substance to fit the circumstance? What do Alito’s relentless, rhetorical attacks on Abood v. Detroit Board of Education, the 1977 case that first required “fair share” fees, portend for the future of unions? And why do the women workers and workers of color keep losing out on the right to be considered full employees?

To help sort through these and other questions, we have gathered up a group of scholars and activists and asked them to expound. They include Eileen Boris and Jennifer Klein, Joel Rogers, Joshua Freeman and Jane McAlevey. Their pieces range from meditations on what Harris v. Quinn means for the vast corps of women (particularly women of color) who make up this new “partial public employee” category to the way the Court has warped the First Amendment into a scythe to slice apart some of our most basic social protections. And if the meditations are not always cheery, well, this isn’t a particularly cheery topic. Then again, it’s not hopeless either. As McAlevey argues, labor still has time to save itself.

Harris v. Quinn shows as little respect for history as it does for women’s work. It distorts the status of thousands of homecare workers, defining them as employees not of the state but only of those to whom they provide care, whom Justice Samuel Alito, writing for the majority, fictionalizes as “customers.” It colludes in their misidentification as “just moms” and mischaracterizes the origins of homecare work as an alternative to welfare for unemployed black domestic workers and other poor women. With a newly invented category of “partial public employee,” Alito denies women working in the home the same rights as other employees, returning unionized personal attendants to the status of household workers still excluded from the National Labor Relations Act. By Alito’s reasoning, there is no way that any organization of domestic workers can “further the interest of labor peace,” one goal of the 1977 Abood decision, and thus homecare workers fall outside of its guarantee of the “union shop.” With this made-up category, the Court engages in yet another sleight of hand to reduce union power, as well as women’s gains through unionism.

But Justice Elena Kagan, writing the dissent, understands the score: “employment law,” she notes, “has a real name—joint employees—for workers subject…to the authority of two or more employers.” The state oversees the entire workforce, setting compensation, cutting the check, deciding credentials and determining hours and even tasks. Illinois also agreed with disability activists that recipients should have control over the selection of attendants and the carrying out of daily activities matched to their personal needs. It authorized unionization as a way to rationalize the labor market, reducing turnover and enhancing care. Co-employment would best promote state goals. Now, as Kagan concludes, “the [Court’s] majority robbed Illinois of…choice in administering its in-homecare program.” Such a ruling subverts the state’s determination of these labors as being of the utmost public interest.

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By dismissing the decades-long struggle of African-American and immigrant women for recognition as workers, Harris reduces a state regulated labor market to individualized acts of love and obligation, furthering the agenda of well-funded anti-union forces. It ignores that home aids and personal attendants are the linchpin of long-term care and that its workforce, 1.4 million and growing, has replaced the iconic auto or steel worker as the new face of labor. Over 400,000 of these previously “invisible” workers have gained collective bargaining, higher wages, benefits and political clout thanks to unionization. Bridging the boundaries between home and state, public and private, work and welfare, care worker unionism not only injected much needed energy into the labor movement but also boosted the welfare state itself. Anti-labor conservatives find this outcome intolerable; Harris supports their long campaign to thwart public sector unionism and collective bargaining more generally.

Home care belongs to the growth of the modern welfare state, which depends on workers to administer its services. This occupation emerged when the New Deal sent visiting housekeepers into the homes of chronically ill, elderly and disabled people. After World War II, these workers became employees of municipal and state welfare and public health departments, including those of Chicago and Cook County. In the 1960s and 1970s, homecare workers unionized with other public sector employees in Illinois and elsewhere. While states responded by contracting out the program or designating some workers independent contractors, the organizing movement of aides and attendants, joined with care recipients, led states to rethink homecare delivery. Illinois decided on collective bargaining to manage this workforce and give poor women a better shot at decent employment.

So why do the Court’s conservatives advance an argument that is out of step with historical, economic and social reality? Part of the reason certainly lies with the nature of the work: domestic tasks done by women in the location of the home, unrecognized as a place of waged labor. Additionally, the labor has been devalued and dismissed because of the stigmatization attached to the work of poor women of color, the legacy of slavery and discrimination. In this context, Harris v. Quinn becomes a direct assault on the livelihood of some of the nation’s lowest paid workers. It is part of the right’s war on women, its demonization of public employees and battle against the union idea.

It also lies in the hybrid nature of such care, which can and has been used to obscure its public nature. For now, the ruling remains a narrow one that applies to the care workers of this Illinois agency, who objected to joining the union. Alito clearly left the door open for a later First Amendment challenge to public sector unionism and fair share fees.

Without the vital movement of care workers and its web of social alliances, we end up with care on the cheap, pitting workers against recipients, hardly a stable solution to the mounting demand for long-term care at home. By ignoring realities on the ground, we succumb to the racialized and gendered anxieties of the past rather than, like the state of Illinois, attempt to meet the needs of elderly people and those with disabilities through collective bargaining with a union chosen by a majority of workers.

How Harris v. Quinn and Burwell v. Hobby Lobby Turned the First Amendment Into a Weaponby Joel Rogers

Monday’s two Supreme Court decisions, Harris v. Quinn and Burwell v. Hobby Lobby, both authored by Samuel Alito and decided on the same five-four, right-left split that’s grown familiar, reaffirmed the right’s perverse use of the First Amendment to prevent public action to enable its declared liberties.

Both cases, in their lead opinion and dissents, have the Gilbert & Sullivan quality of giant stage sets, heavy irony, noisy laughter, and private despair that Mike Leigh’s film Topsy Turvy captured so well. Here lies the painted shell of a once productive society whose official legal establishment has gone deeply, horribly insane.

Harold Meyerson should get an award from The Onion for the title of his American Prospect comment on Harris: “Supreme Court Rules Disadvantaged Workers Should Be Disadvantaged Some More.” That more or less sums it up.

In the end, the Court didn’t overturn nearly a half-century of practice and its own precedent to deny all public sector unions the ability to charge “agency fees” to those benefitting from their collective bargaining but disinclined to join them. But it did deny that to the unions representing most homecare workers, paid through Medicaid, whose miserable working conditions those unions had recently improved. The Court’s theory, which originated in Sylvester Petro’s libertarian critique of public sector collective bargaining and was carried forward in Harris by the National Right to Work Committee, was that such fees effectively compelled speech, a no-no on First Amendment grounds.

The Court’s ruling in Hobby Lobby rested on less elevated, statutory grounds—the Religious Freedom Restoration Act of 1993 (RFRA)—but shares the same insensate libertarian and pro-business thrust of Harris. RFRA was one of Bill Clinton’s many attempts to make peace with the religious right. The law prohibits government infringement of any person’s right to exercise their religion absent the ability to show a compelling state interest achieved through the least restrictive means. In Hobby Lobby, the Court found that right to be held by any privately held corporation with governance rules, following some declared religious belief, contrary to the protection of reproductive rights provided by Obamacare.

The liberal end of the Court was at its best in dissents in both these cases, pointing out the obvious. In Harris, Elena Kagan did a nice job of demolishing the factual basis of Alito’s claims that the state was not a joint employer and that the union had contributed little to workers’ welfare. In Hobby Lobby, Ruth Bader Ginsberg, with her characteristically reserved rage, warned that the Court had “entered into a minefield” with its expansive language awarding corporations the protections meant for modern Pilgrims and other faithful, as well as hurting many women.

Afterward, public sector unions like AFSCME, AFT, NEA and SEIU expressed relief that they had dodged the bullet of a complete reversal of Abood v. Detroit Board of Education, the 1977 case that affirmed unions’ right to charge agency fees in public employment. Hoping for the best but preparing for the worst, they have all done much in the past several months to persuade non-member, agency-fee contributors to become full members. And certainly, the homecare workers screwed in Harris remain full-tilt-boogie-intent on finding some way to get some respect for the hard work they do. For any of us getting older, their effort is worth attention. We will eventually need some of the care they now provide.

But what’s next for the Court?

Alito’s opinion in Harris went to great lengths to eviscerate Abood’s substance, based on its inattention to First Amendment concerns. That doesn’t bode well for its possible future reversal, effectively turning the whole public sector into right-to-free-ride territory. This provides another reason, if such is needed, to pay attention to who fills Court vacancies, perhaps after the 2016 presidential election.

Creepily, however, Alito’s opinion turned not only on his alleged First Amendment concerns but also on the alleged de minimus contribution of the union to worker welfare. The claim might surprise those Illinois homecare workers whose wages doubled after unionization. But it’s relevant to those cases, like Wisconsin, where the ability of public sector unions to improve members’ welfare has been limited by statute. Wisconsin Act 10—a product of presidential hopeful and Koch brothers made-man Scott Walker and his obedient GOP legislature—restricts most public sector unions’ wage bargaining to the rate of inflation, capping real wage gains at zero percent. One can imagine a Catch 22–like Court view in the future: “Hi, sucker. Someone having denied you the ability to do much for those you represent, we’re going to deny you, based on that fact, the ability to survive.”

The broader move, evident in so many recent Supreme Court cases, is to use the First Amendment against the affirmative state. The amendment’s fantastically important and beautiful guarantee of a basic right to free speech and association is being deliberately perverted to declare things approximately opposite.

What happened on Monday was this. The US Supreme Court declared that, depending on your employer’s views, you may not in fact have any right to health insurance that enables your management of your own body. The same day, it also declared that, as you trudge to work at some stale apartment house to clean up and feed a disoriented Alzheimer’s victim, or read to and feed and otherwise try to comfort a disabled kid, you don’t have the right to join a union powerful enough to raise your wage. Recently, this term as well as last, it has clarified the foundational right of rich people to purchase as much political power as they can wish.

So why, dear citizen, would you ever think that this Court, especially under its reading of the First Amendment, thinks you have any right to be part of a society fit to live in?

Is Harris v. Quinn a Threat to Labor Peace?by Joshua Freeman

The five-to-four Supreme Court decision in Harris v. Quinn is a blow to organized labor, a movement that in recent decades has suffered one blow after another, with victories few and far between. But it is not as devastating as many unionists feared. The National Right to Work Legal Defense Foundation hoped to use this case involving Illinois homecare aides to overturn the 1977 ruling in Abood v. Detroit Board of Education, the landmark Supreme Court decision which found it constitutional to require public employees who choose not to join a union to pay an “agency fee” to cover the costs of representing them. The majority opinion, written by Justice Samuel Alito, took lots of potshots at Abood, but did not overturn it. Nonetheless, it ruled the agency fee illegal in this case, deeming the home aides involved not “full-fledged public employees” because under Illinois law they are jointly employed by the state and the individual clients they care for.

For the unions that represent home healthcare workers and childcare workers in California, Oregon, New York, Illinois and other states where government agencies act jointly with individual clients as employers, Harris will be a major setback. Past experience shows that when unions lose the right to collect fees from all workers, whether or not they belong to the organization, a large minority stops paying, which means fewer funds to negotiate contracts, fight for worker interests and further organize. Harris is particularly painful because it threatens the gains labor has made among a workforce largely made up of women, non-whites and immigrants, groups seen by many activists as the future of the movement. But it is nowhere nearly the disaster that would have occurred if Abood had been overturned, drastically reducing the resources of all public employee unions. With over half of all unionists now in government employment, the stakes will be very high if a future Court revisits Abood, as the conservative justices clearly hope to do.

Public sector workers have always been more vulnerable to legal limits than private sector workers. The irony is that in Harris, the Court decided that the problem was not that the Illinois workers were public employees but that they were not public enough, only partial public employees rather than “full-fledged” public workers. Thus the decision does not flow from the long history of opposition to public sector unionism on the grounds that it impinges on the “sovereignty” of government, as the conservative Republican governor of Massachusetts, Calvin Coolidge, said when he broke the 1919 Boston police strike. Many liberals agreed; Franklin D. Roosevelt wrote that “the process of collective bargaining, as usually understood, cannot be transplanted in the public service.” But in the post–World War II years, the struggles of public workers and the enlarged role of unionism in American life led to a broader acceptance of public sector collective bargaining. It remains strong enough that even the most conservative justices did not want to confront it head on.

Instead, Harris is an extension of a different tradition in American labor law, the denial of rights to workers in industries dominated by female and non-white workers. Far from universal, the major New Deal labor laws—the National Labor Relations Act, the Social Security Act and the Fair Labor Standards Act—explicitly excluded particular occupations, including farm work and domestic labor, which had large numbers of female, African-American and Mexican-American workers. While some racially and sexually biased exclusions were later eliminated, Harris effectively extends this history of discrimination.

One of the arguments that legislators and the Supreme Court employed over the decades to support the union shop and agency fee, in spite of their coercive nature, was to claim that they are necessary for the state interest in maintaining labor peace. Such proclamations generally came at moments of labor upsurge—strikes, organizing drives, violent industrial clashes. Collective bargaining and a steady flow of dues to support bureaucratized labor organizations were seen as a way of channeling potentially explosive discontent into the machinery of orderly dispute resolution. In Harris, the Court said exclusive representation without an agency fee is enough to do the trick, forcing the affected SEIU local to represent all the Illinois workers, members and non-members alike, with what no doubt will be diminished funding. Perhaps the Court is right and peace will reign. But labor militancy is a funny thing, popping up at unexpected times and in unexpected places. We have seen tired, middle-aged, non-white women set off social revolutions before—think Rosa Parks or Fannie Lou Hamer. It may happen again.

Unions are in trouble. Short of a giant meteor crashing on top of the nation’s union headquarters emblazoned with the words, “warning, you will soon be crushed by right-to-work laws,” few things could be clearer from the Supreme Court’s Harris v. Quinn ruling.

Harris v. Quinn unites some of the most toxic trends in American labor tradition. It resurrects the worst of the 1935 National Labor Relations Act, the racially motivated, sexist concept of “excluded workers,” and then joins it with one of the worst provisions of the 1947 Taft-Hartley Act, the so-called “right-to-work” legal framework which attempts to gut unions from the inside-out. (Although “right to work” has historically been a state’s rights concept, Harris v. Quinn effectively nationalizes it.)

In the hours since the ruling came down, labor has reacted much as it has to other assaults of the last few years: with a mix of head-scratching and denial. But as challenging as any solution might be, figuring out what to do is not astrophysics. To beat Harris v. Quinn and similar measures being thrown at workers and their unions, the labor movement must address what is happening to it internally.

To understand why, it’s necessary to rewind the clock back to 1995, when a slate of smart, progressive reformers won the leadership of our national labor federation, the AFL-CIO. The victors promised a radical reinvention of the US labor movement. ‘Organize the unorganized’ was the clarion call. With the best of intentions, these unions poured tens of millions of dollars into the creation of “external organizing departments.” Yet in the word external lies one of the keys to labor’s struggles today, a reason why lawsuits like Harris v. Quinn and lawmakers like Scott Walker in Wisconsin, Rick Snyder in Michigan and other equally destructive opponents have been successful at gutting unions twenty years into a program that promised to revitalize them.

While reformers were busy trying to expand labor’s ranks, they left behind the most important resource in any challenge to corporate power: labor’s existing ranks. They are the best organizers of unorganized workers, a concept that become rhetoric in the reform effort, not reality. At the same time, the reformers assigned the second-most-important resource, full-time staff, to external organizing teams. This is especially true of the most talented organizers, the ones who specialize in fostering participation, solidarity and the kind of direct action by workers that transforms their understanding of their relationship to each other, their employer and capitalism. Participation and solidarity convince workers that it makes sense to voluntarily pay union dues to combat business-funded right-wing attacks.

This brings us to a second problematic word: representation, which describes the model that dominates all US unions. A representation model of unionism functions much like a car-insurance policy. Workers pay dues and put the membership card into the glove compartment, so that when they crash, or when management rear-ends them, they can get help from their union.

But this model hasn’t helped unions for decades. Many workers, like many drivers, don’t ever crash or get hit. More to the point, unions are much more than mere insurance companies, because they have tools to determine the most important protections for workers’ lives—including pay, benefits and workload. How well a union contract does this directly reflects the power of the membership at the time of contract negotiations. If management sees a united, active workforce, the workers are likely to win and win big. The stronger the local union is at contract time, the better the contract. The better the contract, the more likely that workers in a right-to-work environment will volunteer dues, and, nonunion workers in the same shop or even the same town, city, or region will be ready to risk fighting for their own union so that they, too, can win a better quality of life. And a strong local union is built when the best workers, the majority of workers, are actively participating in and running it themselves, not when the job of “governance” is delegated to a handful of shop stewards or staff reps.

What would happen if the governing model for unions were called ‘participation’ instead of ‘representation,’ and, it actually fostered high participation?

We have just enough examples of local unions that do operate successfully in right-to-work states to know that a culture of participation is key wherever signing membership cards and paying dues is voluntary. Even in the face of campaigns by employers to get workers to drop their membership and refuse dues, workers will continue to be members and to contribute from their paycheck when they experience their union as their union. In Nevada, I helped build a union that sustained 75 percent to 85 percent voluntary membership levels, and we did it by helping workers to understand that everything they hoped and dreamed for was possible—contingent on their own direct involvement in collective action and in the day-to-day affairs of their union.

We moved beyond the simplistic “engagement” verbiage common today but often contradicted internally. For example, very few workers have ever been allowed to experience collective bargaining. The process is typically done by a lawyer and few workers; ten members in a room representing thousands of others would have a union congratulating themselves for involving people. We radically transformed the contract negotiation process: all union contracts were negotiated using a model of open, transparent collective bargaining. We didn’t welcome workers to their own bargaining process; instead, we systematically engaged thousands, bringing them into negotiations for weeks, a day, on their lunch or coffee break. Our goal was for every worker to experience how their contract is won; a few hours of watching the management team was often transformational.

When the contract was settled, we didn’t stop the high participation because we understood it as a muscle, something that atrophies when not in use. We upended the tradition of union leaders deciding union political endorsements by bringing thousands of rank-and-file workers together to decide which candidates deserved their support. Crucially, we enhanced worksite problem solving by empowering the majority of workers to take direct action, reserving the expensive, lawyer-centric grievance process for specialized cases that couldn’t be solved as effectively by workers on the job, confronting the employer en masse. We understood that clauses in a union contract dealing with such mundane issues as new employee orientation could be written in language that forced management to allow no less than one hour for unsupervised unionized employees to engage in worker-to-worker education about how they had won the good wages and benefits the new hires were inheriting. Smart bosses fight this language tooth and nail, and smart unions help workers understand why new employee orientation is a key to future union strength.

Why don’t all unions embrace this high-participation model? Because internal democracy has been the “dangerous” third rail of unions for a very long time. In a high-participation model, rank-and-file members might choose to run for office themselves. Today’s union leaders, including those who are inspiring progressives with campaigns to pass the Robin Hood Tax and the McDonald’s workers’ crusades and other generally good causes being fought outside the current ranks, are as afraid of true high participation and internal opposition as any before them.

And no, hell no, these criticisms are not an embrace of Pamela Harris or her Koch-funded legal attack, or of right-to-work states—far from it. This is the only real strategic option for what’s left of our unions if they want to survive and even thrive. Yes, unions are being challenged today by a well-coordinated attack from outside, but unions are also dying inside.The margin of victory for Scott Walker in the recall election and the margin of defeat for Michigan unions in their attempts to enshrine collective bargaining in the state constitution were within the union household vote.

The lack of attention to the current membership is sealing labor’s fate. Deciding to reorient to a high-participation model of governance is one clear choice unions can make to strengthen themselves and beat back the besiegers. To win big, to raise workers’ expectations and convince them that they and their communities can reclaim a decent quality of life, unions must rebuild from the inside out. For unions to thrive again, today’s leaders need to tolerate dissent in ways they have been averse to, including during the epoch of renewal that was first promised in 1995.

Jennifer Klein Jennifer Klein is professor of history at Yale University. Her most recent book is Caring for America: Home Health Workers in the Shadow of the Welfare State (Oxford, 2012), co-authored with Eileen Boris.

Joel Rogers Joel Rogers, a Nation contributing editor, teaches at the University of Wisconsin, where he directs the Center on Wisconsin Strategy.

Joshua Freeman Joshua Freeman teaches history at Queens College and the Graduate Center of the City University of New York and is affiliated with its Joseph S. Murphy Institute for Labor Studies.

Jane McAlevey Jane McAlevey, a PhD Candidate at the CUNY Graduate Center, spent two decades as an organizer in the labor and environmental justice movements. She is the author of Raising Expectations (Raising Hell): My Decade Fighting for the Labor Movement (Verso, 2012).